The AAO Designates New Precedent Decisions Addressing Standard of Proof and Portability Issues

I. Background

On October 20, 2010, the Administrative Appeals Office (AAO) designated two decisions as precedent. This marked the first time in more than a decade that the AAO has issued a precedent decision. Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm., Aug. 7, 1998) delineating the three-prong criteria for National Interest Waiver was the last precedent decision issued. These new precedent decisions follow U.S. Citizenship and Immigration Services Director Alejandro Mayorkas's goal expressed earlier this year to have the agency issue more precedent decisions as part of "USCIS's commitment to the clear and consistent application of immigration law."

Because the majority of the United States follow the common law, precedent decisions are extremely valuable in the legal community because they clarify statutory and regulatory laws and provide guidance to both the government and legal practitioners, allowing for greater predictability in the outcome of cases. Unless the decisions are reversed by a higher court, precedent decisions have the same force of law as codified statutes and regulations, and their holdings and legal reasoning are binding. This means that precedent decisions establish a rule that must be followed when deciding future cases, and legal practitioners can rely on and cite to the decision in the same manner that they would rely on and cite to a statute or regulation.

In immigration law, precedent decisions issued by the AAO are binding on the Department of Homeland Security. The AAO does not have a codified process for designating precedent decisions, but it generally looks for cases with a "novel issue of law or fact and when it is necessary to provide clear and uniform guidance concerning the proper implementation and administration of the statute and regulations where applicable regulations are unclear or silent."

The following is a brief description of the two new precedent decisions and how it may affect petitioners/beneficiaries/applicants applying for immigration benefits:

II. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)

This case establishes the standard of proof in administrative immigration proceedings: "Preponderance of the evidence" (unless a different standard of proof is specified by law). Please keep in mind that there is a distinction between "standard of proof" and "burden of proof." The burden of proof relates to which party must submit evidence to prove the case. In administrative immigration proceedings, the burden of submitting evidence to prove eligibility for immigration benefits is placed on the petitioner or applicant. The standard of proof relates to how much evidence is required to prove the case.

"Preponderance of the evidence" means for most I-140 and I-485 cases, the petitioner or applicant must submit evidence that demonstrates his/her claim is "probably true." The petitioner or applicant will satisfy the standard of proof if the evidence leads the adjudicator to believe that the claim is "more likely than not" or "probably" (i.e., greater than 50%) true (even though there might be some minor doubts). The adjudicator reviews the quality of the evidence not the quantity to "examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true." If the adjudicator can raise a material doubt, then the adjudicator can issue a request for evidence or deny the petition or application with an explanation of why the adjudicator believes the claim is probably not true. (Matter of Chawathe also contains holdings related to the requirement for establishing continuous residence in naturalization proceedings under INA § 316(b) and the nationality of a qualifying American firm or corporation.)

As we have always advised petitioners and applicants, the content or quality of each document submitted in support of their petitions or applications is more important than the quantity or number of documents submitted. Perhaps due to a misunderstanding that "more is better," many petitioners and applicants try to submit hundreds of pages of documents to support their petitions and applications. Many of these documents often have no effect on the case or can actually have adverse effects. Our firm has mentioned before that the USCIS has warned many times against excessive documentation and has cautioned that petitions submitted with an excessive number of supporting documents can lead to delay in adjudication, more requests for evidence, and denial.

Thus, in the presentation of cases and the organization of evidentiary exhibits, our attorneys closely review each document a client provides and decide whether it should be submitted in the initial filing, reserved in the event of requests for evidence, or not submitted. Supporting evidence should focus on the materials that satisfy the basic evidentiary requirements set in the statute and regulations. Submitting numerous documents that do not have a logical nexus to the case or are at best marginal evidence can have negative consequences. Accordingly, it is important that evidence submitted in the initial filing be straightforward, so the adjudicators can quickly review the documents and have a clear picture of the case.

Clarification of the standard of proof is critical for all legal matters, especially immigration cases. If the adjudicator uses an incorrect standard of proof, for example, a higher standard such as "clear and convincing evidence," this may result in denial of a petition or application that otherwise should have been approved under the proper standard of "preponderance of the evidence." This is often an issue that arises in Requests for Evidence and appeals. In cases where our attorneys see the USCIS apply an improper standard and request "clear" evidence, we always raise the issue and make proper arguments in our RFE responses and appeals because it can make a difference between the approval and denial of a case.

III. Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010)

This case clarifies issues related to the portability provisions for I-140 Immigrant Petitions in the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). This is commonly remembered as the law that allows foreign nationals with I-485 applications that have been pending for 180 days or more to "port" to a new employer. At the time AC21 was enacted, concurrent filing (submitting both Forms I-140 and I-485 together) was not allowed for employment-based immigrant petitions. Thus, Form I-140 Immigrant Petition had to be approved before the applicant could file Form I-485. Introduction of the concurrently filing process in 2002 led to unanticipated issues where many foreign nationals had I-485 applications that were pending for more than 180 days and unadjudicated I-140 petitions, resulting in uncertainty regarding how an unadjudicated I-140 petition would remain "valid" for a new position.

The AAO ruled that an I-140 petition is not "valid" just because it was filed and pending more than 180 days. To be "valid" the I-140 petition must be filed for a foreign national who is "entitled" to the requested classification (i.e., a non-frivolous filing) AND the petition must have been "approved" by USCIS.

This decision is in line with a December 2005 memorandum issued by USCIS clarifying the processing and adjudication of I-140/I-485 where the foreign national beneficiary has ported off of an unapproved I-140 after the I-485 had been pending for 180 days. Thus, Matter of Al Wazzan is a good reminder to foreign nationals who seek to port while the I-140 is still pending. They must ensure that the I-140 is a non-frivolous filing and would be approvable on its merits if it had been adjudicated within 180 days.

Given the inconsistency of USCIS adjudications, AAO precedent decisions have been long awaited and sorely needed. We anticipate additional decisions will be forthcoming in the next year and will continue to provide updates on new rulings as they arise.

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